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Judicial Activism at Center of Supreme Court Fight

As the dog days of summer roll through August, the hot breezes will give way to the hot air of liberal opposition to the confirmation of Judge John Roberts, President Bush’s nominee to replace Justice Sandra Day O’Connor on the U.S. Supreme Court.

While Congress is in recess, the liberals will be spending the next few weeks trying to find some “extreme circumstance” in order to justify filibustering Roberts. Because so much is at stake, it is important that people across the country pay close attention to this process.

Most of the attention will be focused on Roberts’ views concerning abortion and on how his faith as a Catholic will affect his performance as a justice on the Supreme Court. Liberals have already started sniping at his wife about their faith. Some liberals have become gravely concerned about the fact that Roberts’ wife goes to church regularly and that she headed up a pro-life organization.

Once the confirmation hearings begin, the Democrats will do everything in their power to stall the confirmation of Judge Roberts. They will not be able to attack him on his lack of qualifications because Roberts ranks among the most impressive nominees in recent years. Instead they will attempt to discredit him based on his judicial philosophy that judges and justices are to interpret the Constitution, not ignore it and make up laws as they see fit.

Liberals live in mortal fear that they will lose the Supreme Court and the federal judiciary because it is the last means available to them to advance their liberal agenda. Consequently, they will attempt to redefine judicial activism by trying to convince the public that any nominee that opposes abortion, or as the liberal will claim, a woman’s constitutional right to choose, is a judicial activist.

Because the public is almost evenly divided on the issue of abortion, ordinarily their efforts might be effective. But the dynamics have changed. The public has recently awakened to the fact that judicial activism is not just about Roe v. Wade or the Ten Commandments or taking God out of the Pledge of Allegiance. Judicial activism is now about taking a family’s home and/or property.

No other Supreme Court decision in recent history has done more to focus public attention on judicial activism than the Kelo v. the City ofNew Londondecision issued by the Court at the end of June. That decision found a new right for state and local governments to expand the interpretation of eminent domain well beyond taking private property for public use. Kelo established a new right that allows state and local governments to redefine eminent domain to include the taking of land, homes, businesses, and church property so that it can be given it to private developers for the purpose of providing a “public benefit.”

The problem with this is that there is no provision in Article V of the Constitution that justifies taking private property for a “public benefit” and certainly no provision for turning private property over to private developers. In fact, the government’s power of eminent domain is clearly limited only to taking private property for public use, only by the government and only after the owners are justly compensated.

While most people have not read the Constitution or the Bill of Rights, practically every American holds sacred the right to own property without fear that the government will take it away from them. For the majority of Americans, the right to private property is an unalienable right that five activist Supreme Court justices have now undermined.

After years of undermining our fundamental Constitutional rights, the Kelo decision has unmasked judicial activism for millions of Americans.

As Judge Robert Bork pointed out in a recent Wall Street Journal article, activist justices have weakened the authority and rights of all our public and private institutions…our schools, our businesses, our churches.

Judicial activism has eroded the moral and spiritual foundations of our culture including marriage and family.

Bork wrote, “Whatever one may think of these outcomes as matters of policy, not one is authorized by the Constitution and some are directly contrary to it. All of them, however, are consistent with the left-liberal liberationist impulse that advances moral anarchy.” Translation, the liberal politicians have used the judicial activists on the Supreme Court to impose political, cultural, and social changes that the public would otherwise not accept.

Which leads us to where we are today with a pending battle for the confirmation of Judge John Roberts to the Supreme Court. This confirmation battle is first and foremost about ending the abuses of activist justices.

As Bork wrote, “The struggle over the Supreme Court is not just about law: it is about the future of our culture.” Now, as a result of the Kelo decision, a majority of the American public now understands that the struggle over the Supreme Court is also about preserving our rights to our homes and property.

Gary Palmer is president of the Alabama Policy Institute, a non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.